Legal Pathways For A Massive Increase In Utility-Scale Renewable Generation Capacity

Summary

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018), discusses the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act; state and local approvals; and species protection laws. It also presents recommendations for lowering the obstacles and briefly discusses several corollary actions that are needed.

Introduction

Achieving the Deep Decarbonization Pathways Project (DDPP) scenarios1 to decarbonize the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar,2 and associated transmission that is not only unprecedented—it will exceed what has been done before in the United States by many times, every year out to 2050.

This Article will discuss the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act (NEPA); state and local approvals; and species protection laws. It will also present recommendations for lowering the obstacles, and it will briefly discuss several corollary actions that are also needed.

These problems are not unique to the United States. A 2016 study from the International Energy Agency found that large renewable projects in France, Norway, and the United Kingdom have also been plagued in varying degrees by delays from political/regulatory issues, site access, environmental approvals, and grid connection.3

Approval delays are costly in several ways. Construction costs may escalate. New technologies or requirements may compel a revision in designs, leading to further delays. Applicants may become so discouraged by the delays that they give up, or their financing may vanish, or local opposition to...